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Palmer v. City of Oxford12/4/2003
urt] I understand?
A. Showed invalid test check ambient conditions. The intoxilyzer has detected a presence of substance in the room which will stop the instrument from completing an air reading.
[Defense] I object to him having read on a booklet and if the Court is going to consider it I will ask that it be admitted so the court can consider whether or not it be allowed without.
[Court] Your objection will be noted and I'm going to allow him to continue with the examination and allow you to cross examine him on this point so I can be a little more edified, if that is a word before this is over with.
Q.[State] Now let's talk about [where] you said you got that from a booklet. Where did you get that definition?
A. Well actually it was given to me by the chief DUI Officer, Sergeant Goolsby. Part of our training process when you come across certain things I asked him about this I had on an earlier case and he give me a copy of this so I could refer to it.
Q. What is protocol once you receive that error message that you have got on those two test cards that you have in front of you. What do you do?
A. Run the test again.
Q. After doing what if anything?
A. It's not necessary, from my training it's not necessary but I waited for an additional 20 minutes and offered him the test again.
. On cross-examination, Officer Sockwell stated that he allowed Palmer over 40 minutes total for the intoxilyzer tests. The officer waited twenty minutes before administering the first test, another twenty minutes before the second test and two minutes between the second and third test. Pursuant to McIlwain , the three-prong test for laying a predicate for admission of the test was properly completed as indicated in the testimony and submission of the certificates.
. As for the manual, the trial judge stated that he would allow Officer Sockwell to be cross-examined on that point. However, during the whole trial including cross-examination no manual was ever presented to the trial judge for consideration. While it is somewhat unclear from the record, the State argues that Officer Sockwell did not have a manual with him on the day of his testimony nor was a subpoena requested for the production of the manual. Nevertheless, the officer did testify that he was trained to run the tests again whenever there was a reading of an "invalid test check ambient conditions." Officer Brian Goolsby, chief DUI officer, had given Officer Sockwell the definition as part of the training process. In addition, Officer Sockwell explained that his training taught him that a strong odor of an intoxicating beverage in a room will cause this type of machine reading. Officer Sockwell then stated that on the night in question, only Palmer and he were in the intoxilyzer room which is very small, only a little bit bigger that the size of a closet. On cross- examination there was an indication that Officer Sockwell had some sort of "form" which contained the definition. When questioned about the training that Officer Sockwell received on ambient conditions, he also stated that "Sergeant Goolsby giving me that form showing me the reason for that type of reading." (emphasis added)
. The record is unclear about the alleged reference to the operating manual. Officer Sockwell does refer to a "booklet"; however, he stated that Officer Goolsby gave him information for the "check ambient condition" test result as part of his training process. On cross-examination, Officer Sockwell refers to a "form" that Officer Brian Goolsby gave to him. The manual was not excluded by the trial court rather the trial court allowed
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